Travis and Weaver
[2014] FCCA 1279
•18 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAVIS & WEAVER | [2014] FCCA 1279 |
| Catchwords: FAMILY LAW – Parenting of child aged 8 – high conflict between the parties – mother wishes to take child on holiday to (country omitted) and (country omitted) for approximately four weeks in July/August 2014 – father opposes overseas travel for child – father concerned holiday too disruptive for child’s school and daily routine and possibility of harm in (country omitted) – mother (country omitted) national with right of residence in Australia who is married to Australian national – matters to be considered in respect of overseas travel – assessment of possible benefits and detriments to child of proposed travel – best interests – make-up time – arrangements for handover – final orders made in August 2012 following trial – father seeks to revisit orders – application of the rule in Rice & Asplund. |
| Legislation: Family Law Act 1975, ss.60B; 60CA; 60CC; 64B |
| Ullman v Weaver [2012] FMCAfam 871 Rice & Asplund (1979) FLC 90-725 CDJ v VAJ (1998) FLC 92-828 In the Marriage of McEnearney (1980) FLC 90-866 Bennett & Bennett (1991) FLC 92-191 SPS & PLS [2008] FamCAFC 16 King & Finneran (2001) FLC 93-079 Van Hoof & Herbert [2011] FMCAfam 1099 Bright v Bright (1995) FLC 92-570 |
| Applicant: | MS TRAVIS |
| Respondent: | MR WEAVER |
| File Number: | ADC 2605 of 2011 |
| Judgment of: | Judge Brown |
| Hearing date: | 12 June 2014 |
| Date of Last Submission: | 12 June 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 18 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Heinrich |
| Solicitors for the Applicant: | Armour & Allen |
| Counsel for the Respondent: | In Person |
| Solicitors for the Respondent: | Not Applicable |
ORDERS
The mother and the child of the marriage X born (omitted) 2006 (hereinafter referred to as “the child”) be permitted to travel outside of the Commonwealth of Australia between 12 July 2014 and 9 August 2014 for the purpose of the mother and child travelling to (country omitted) and (country omitted).
The travel envisaged pursuant to order (1) hereof is subject to the following conditions:
(a)The mother take out travel insurance for the entire period of the envisaged travel with Allianz Insurance, at her own expense, with the relevant policy to have cover for the child, mother and Mr H, including overseas emergency medical assistance and evacuation, which is to be available to the mother any where in the world and at any time and include provision for repatriation to Australia for the child in the event that either the mother or Mr H becomes incapacitated to such a degree as to require hospitalisation whilst outside of Australia;
(b)The mother is provide a copy of the relevant policy of insurance to the father ten days prior to the date of her departure from Australia;
(c)The mother is to provide an itinerary of the proposed travel to the father, which is to include contact details including relevant mobile telephone numbers and addresses applicable whilst the child is outside of Australia together with details of all flights to be taken by the child, including times of departure and arrival and flight numbers and carriers ten days prior to the date of her departure from Australia;
(d)The mother take all necessary steps, including travelling with an appropriately equipped computer, to enable the child to have communication with the father via Skype on two occasions each week, whilst the child is outside Australia.
Any orders previously made placing the child’s name on the Airport Watch List maintained by the Australian Federal Police at each port of international departure from Australia are discharged.
Orders 8, 9 and 15 of the orders made on 30 August 2012 are suspended from the end of term 2 in 2014 and in lieu thereof the child is to spend time with the father from after school on Friday 4 July until midday on Friday 11 July 2014, which period is to include the entirety of the child’s birthday in 2014.
Order 18 of the orders of 30 August 2012 is amended so that any handovers of the child which cannot take place at his school are to take place within the foyer of the main Adelaide police station located at (omitted), Adelaide.
Order 9 of the orders of 30 August 2014 is amended to the effect that for the end of year holiday period commencing in 2014 only, the father spend time with the child for the first four weeks of such holiday, subject to the existing arrangements for Christmas Eve, Christmas Day and Boxing Day specified in order 15 of those orders.
All extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Travis & Weaver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT |
ADC 2605 of 2011
| MS TRAVIS |
Applicant
And
| MR WEAVER |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Travis (formerly Weaver and Ullman) and Mr Weaver are the parents of X born (omitted) 2006. X, as his parents call him, is soon to have his eighth birthday. He is currently in Grade 2 at (omitted) Primary School.
Ostensibly the proceedings concern the appropriateness or otherwise of an overseas holiday for X, which the mother proposes and how he is be exchanged between them in future. However the proceedings are also demonstrative of long standing problems in how they parent X together.
The parties do not have an easy relationship with one another. Sadly, in part, because of the lack of trust between them and deficits in their ability to communicate effectively with one another, there has previously been much litigation concerning parenting arrangements for X.
Most recently, I determined that X should live predominantly with his mother and spend regular periods of time with his father.[1] In the relevant judgement, I set out the parties’ very different backgrounds.
[1] See Ullman v Weaver [2012] FMCA 871
The mother was born in (country omitted), in what is now the (country omitted) but was then the (country omitted), on (omitted) 1986. The father was born in (country omitted) on (omitted) 1965. They met, via the internet, in 2005 and ultimately married in (omitted) on (omitted) 2006. X was born in (omitted) a few days later. He is a (country omitted) citizen by birth and a (country omitted) citizen by descent.
X spent his earliest years in (country omitted). He and his mother emigrated to Australia in early 2008. By this time the mother had obtained a spousal visa for (country omitted), which allowed her entry to Australia. Mr Weaver is an (omitted) by profession and he considered that he had better employment opportunities in Australia.
The parties and X lived together as a family in suburban Adelaide between 2008. They separated, in difficult and acrimonious circumstances, in mid-July of 2011. Around this time the mother met her present husband Mr H, whom Mr Weaver regards as an unsavoury character.
Following the parties’ separation, they attempted a shared care regime for X. For reasons I have already provided, at some length, I determined that this was not an arrangement calculated to be in X’s best interests and he needed to live more with one parent than the other. I decided that this parent should be the mother.
One of the main factors influencing this decision was the poor and mistrustful relationship between X’s parents. In these circumstances, I concluded that it was not reasonably practicable for there to be a shared care regime. I found that neither party had any capacity to empathise with the parenting styles and aspirations of the other and their capacity to communicate, about parenting matters to do with X, was severely compromised.
Sadly, it is my impression, that in the two years or so since this decision was made, the relationship between the parties has not got any better. In fact, it may have got worse. It is the mother position that the father constantly harasses her at handovers and is unreasonable and bullying towards her.
It is the father’s position that he is a reasonable person and a good parent. He regards the mother as a calculating and mendacious person, who will tell whatever lies are necessary to advance her ends. He was deeply disappointed with the court’s decision and no doubt regards it as wrong. It has however not been subject to appeal.
The police instituted proceedings against Mr Weaver in respect of an allegation, instigated by Ms Travis, that he had assaulted her at a hand over of X on (omitted) 2013.
The charge against Mr Weaver proceeded to hearing in the state magistrates’ court but was apparently dismissed, as was an interim intervention order. From Mr Weaver’s perspective, this was a vindication of his view of the mother. From Ms Travis’ perspective, it was more a case of inadequate evidence being a matter of her word against that of the father and neither being preferred by the presiding magistrate.
However regardless of the outcome of this case, the parties separately acknowledge that their relationship remains appalling. What are the consequences of this state of affairs for X is unclear, but it cannot be good. It also seems to be the case that there are unresolved proceedings between the father and Mr H regarding an alleged breach of another intervention order.
I endeavoured to make as comprehensive as possible the final orders dealing with X’s parenting which finalised proceedings on 30 August 2012. These orders envisaged X being nominally exchanged between his parties, whenever possible, at his school, so that his parents did not have to come into contact with one another.
Otherwise, it was ordered that X was to be exchanged, when school was not available, at a location to be agreed between the parties. The orders did not specify a fall back position. At the time, as I recall, Mr Weaver did not favour a police station, as he was concerned that this would create an unfavourable impression on X.
However, the deteriorating relationship between the parties has dictated that the secure premises of a police station, where both parties will have ready access to authority if disputes arise between them, must be utilised as the handover point for X, when school is not available.
The more recent controversy has been which police station it should be or whether it is reasonably practicable for the parties to use a more child focussed option, such as a child contact centre, for non-school handovers.
Mr Weaver lives in (omitted), in the eastern suburbs of Adelaide. Ms Travis and her husband live in (omitted) to the north. From the father’s perspective (omitted) is the most convenient police station; from the mother’s perspective, it is (omitted).
In addition, she prefers (omitted) because it is a major police station and is attended 24/7, as the jargon has it. It is her case that (omitted) is a small police station, which is closed from time to time, particularly whilst officers are on patrol. In Mr Weaver’ view, the smallness of (omitted) is its major advantage. It is also his case that (omitted) is a nicer police station, a proposition Ms Travis regards as risible.
At my instigation, the parties investigated a contact centre, but both agree that the hours of such centres are likely to be limited and the current parlous nature of their relationship prevents them from being able to negotiate handover on an ad hoc basis. Accordingly, it must be a police station.
During the course of the hearing, I suggested a compromise, which shared the inconvenience of handover between them. It was that the fall back handover location be the central Adelaide police station, which is about mid-way between their respective homes and is also a major police station, attended around the clock.
To the parties’ mutual credit, they seized upon this idea with alacrity. This, in my view, is emblematic of their relationship as parents. They have a capacity to compromise but only in the most tendentious way and only after much time has been consumed.
Each party seems to be at pains to want to make a point and demonstrate himself or herself as being the more reasonable and insightful parent and the other as the villain in the piece. This characteristic appears to be more pronounced in the father’s case than that of the mother. It should not need to be pointed out, but I point it out nonetheless – the purpose of these proceedings is not to provide a soapbox for the parties to catalogue in public their perceptions of the moral failings of the other.
In order to see if it was possible to see if some compromise could be brokered about the handover and holiday issues, I referred the parties to a family consultant, Mr T pursuant to the provisions of section 11F of the Family Law Act. Mr T report back to the court on 28 May 2014 that nil agreement was reached and that the essential dynamic of the parties’ relationship was one of power and control.
I agree with that assessment. In my finding, both parties have very strong personalities. As such, both aspire to having the upper hand over the other. What they do share is a fervent love for X which is manifest by a desire to ensure that he has the best possible life and the most opportunities to be fulfilled as both a child and an adult.
Necessarily however, as a consequence of their differences in background, culture, age and sex, they have little common ground on how this is to be achieved. The dynamic of their relationship is each thinks he or she knows best and wants the last word. Again, it is my assessment that, although Ms Travis is not immune from criticism in this regard, these characteristics are more pronounced in Mr Weaver.
The applications
The mother commenced the proceedings on 5 March 2014. She sought orders that all handovers, other than those at school, take place at the (omitted) police station; that the father provide her with X's (country omitted) passport; and she be permitted to travel with X to (country omitted) and (country omitted) between 12 July and 9 August 2014.
Mr Weaver responded to this application on 13 May 2014. He sought to revisit the final orders made by the court on 30 August 2012, which had been made following a four day trial. His application was silent about the mother’s current application. Rather, he essentially sought to reverse the current parenting arrangements so that X live predominantly with him and spend time with his mother on weekends and during school holidays.
It is now clear that Mr Weaver opposes the mother’s proposal for X to travel overseas. The bases for his opposition are somewhat inchoate but primarily focus on the length of the proposed trip and the fact the X will miss too much school; and, to a lesser degree, that (country omitted) in general and (country omitted) in particular, where the mother wishes to visit her family, are dangerous and lawless places, when compared to Adelaide.
In addition, Mr Weaver believes that Mr H will be a potential liability to the family in (country omitted) because his appearance will draw attention from criminal elements, which may put X in harm’s way. In this context, Mr Weaver is concerned that the mother and Mr H will find that they have inadequate travel insurance and again this may put X at risk, particularly if either Mr H or the mother is physically incapacitated.
The mother’s case is that the proposed trip will be beneficial to X and cannot be described as being unduly lengthy, given the child’s age and stage of his education. Mr H has a (country omitted) background. Part of the trip envisages a visit to the part of (country omitted) from which Mr H derives and where members of his family continue.
It is the mother’s case that X is now part of a blended family. Mr H has previously been married and has two children from his earlier relationship. They are A aged four and B aged fourteen. It is planned that they will take part in the trip as well. More significantly, the mother and Mr H have recently had a child together. He is Y aged around four months.
It is proposed that Y will be baptised in (country omitted), in the presence of both paternal and maternal members of his family. In particular, it is proposed that his maternal grandmother and uncle will travel from (country omitted) for the event. From the mother’s perspective (and indeed from that of Mr H) it is a very significant event for them and for both X and Y.
These proceedings are addressed to resolving this issue of overseas travel for X. However, it is also necessary to address Mr Weaver’s application to change the previously ordered parenting regime for X.
At an earlier stage, I indicated to Mr Weaver that I did not consider it appropriate for the court to embark on a further round of litigation, in respect of these care arrangements, particularly when I considered that proceedings had first begun in July of 2011. In this context, I alluded to the case of Rice & Asplund. It is now necessary to flesh out this decision.
The application of the rule in Rice and Asplund
There is no absolute rule, but the case of Rice & Asplund recognises that it is neither helpful to parents nor beneficial to their children that there should be continual litigation about the care of children. There comes a point when “enough is enough”.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.[2]
[2] See Rice & Asplund (1979) FLC 90-725
In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration. As the circumstances of both parents change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited. Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund. It is an expression of the paramountcy rule arising from section 60CA.
The primary purpose of the rule is to prevent “endless litigation”[3] and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”.[4]
[3] See Rice & Asplund (supra) per Evatt CJ at 78,905
[4] See SPS & PLS [2008] FamCAFC 16 at [56]
Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[5]
[5] Ibid at [58]
Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children.
It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[6]
[6] See CDJ v VAJ (1998) FLC 92-828 at 85,449
In addition, if the court allows parents to have frequent recourse to litigation to settle disputes between them regarding parental arrangements, it is likely to have significantly harmful psychological consequences not only for the parents themselves, but especially their children. It has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”[7]
[7] See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS (supra) per Warnick J at [57]
It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either as a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[8]
[8] See Bennett & Bennett (1991) FLC 92-191 at 78,262
However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage. If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[9]
[9] See SPS & PLS (supra) at [59]-[60]
Given that the court will often be called upon to apply the principal expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage. It is not a rule which is to be applied formulaically.
Rather, the court must examine the evidence available and determine whether, at its highest and without determining is veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing.
Warnick J put it as follows:
“…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”[10]
[10] Ibid at [81]
It will frequently be the case that there is much controversy between the parents concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975.
The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation between their parents.
In arriving at its decision, the court must look to the following matters:
·The importance or seriousness of the issues raised, both individually and where necessary collectively;
·The impact that the issues are likely to have on the best interests of the children concerned;
·Whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.
That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change. [11]
[11] See King & Finneran (2001) FLC 93-079 at 88,367
In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry. In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.[12]
[12] Ibid at [84]
In this particular case, there has already been an intensive inquiry into how X’s best interests were to be served. This inquiry occupied four sitting days and entailed the preparation of a family assessment report, which recommended that X live predominantly with his mother. The case in question was concluded less than two years ago.
The background to those early proceedings was that the parties communicated poorly and had unresolved emotional issues as a consequence of the end of their comparatively short marriage. It was also apparent that they came from very different backgrounds. Regrettably all of these features remain in the present dispute between the parties.
In these circumstances, I can glean no change of circumstances of sufficient moment to justify re-opening the proceedings between the parties. To the contrary, I can see considerable perils for X if the court permits further untrammelled litigation between his parents. At this stage, I can see no realistic possibility of their being any change in the substance of the orders presently pertaining to X on the basis of the evidence available to me.
I accept that Mr Weaver was disappointed with the outcome of the earlier proceedings. I also accept that he considers that the decision was wrong. That is his prerogative. However, there was no challenge to the orders made, which have now been in place for a period approaching two years. At this stage, in my view, X needs to have a sense that arrangements for his care are stable and fixed.
The flavour of Mr Weaver’s application is of an ambit claim that was brought as a tit for tat response to her application to travel overseas with X and a further application, which was addressed to securing the return of X, which as matters unfolded became otiose as Mr Weaver did return the child to her without the need for any court order.
All these circumstances are indicative of the ill will between the parties which is long-standing and likely to remain endemic. Sadly, nothing has changed been the parties. As such it is neither necessary nor likely to be helpful to X, to re-litigate the various and highly entrenched parenting issues and conflicts in dispute between the parties.
In addition, it is my view that this issue (should further proceedings of a final nature be countenanced by the court) can be determined as a preliminary or threshold issue by the court. For these reasons, the father’s application is dismissed.
The legal principles applicable to issues relating to overseas travel
Part VII is the part of the Family Law Act 1975 which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child.
Accordingly the issue of whether the child concerned in this case should or should not travel to (country omitted) and (country omitted) (or indeed any other location outside of Australia) is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].
The best interests of any child concerned are the paramount or most important consideration [section 60CA] in making any parenting order. Fundamentally, the court must decide whether it is in X’s best interests to travel outside of Australia. Necessarily, given the structure of the Act, this is a multi-faceted inquiry.
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply, to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as twin pillars, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act the court is now directed, “in applying the primary considerations… to give greater weight to section 60CC(2)(b).” This, of course, is the consideration dealing with abuse, neglect and family violence. These considerations are now to be given priority.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made by the court.
The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors, both primary and additional.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)].
Clearly if a parent absconds with a child overseas, such an action must have the most serious implications for the nature of the relationship the child has with the parent left behind. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[13]
[13] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must also make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;
·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·the degree of risk that the departing parent will not return to Australia.
·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.
·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[14]
[14] See Line & Line (1997) FLC 92-729 at 83,846
Ms Travis is currently a (country omitted) national, who travels on a (country omitted) passport. Her current husband is an Australian national. As I understand matters, the mother intends to apply for Australian citizenship in the foreseeable future and believes her application will be successful, given the length of time she has lived in this country and her marriage to an Australian citizen. The mother’s (country omitted) passport bears a visa, apparently issued under the Migration Act, entitling her to permanent residency in this country.
X was born in (country omitted) and hold a (country omitted) passport. He also has a (country omitted) passport. He has lived in Australia since he was less than two years of age. The mother’s evidence is that she sees her life in future and that of X in Australia, where she believes both will be better off in a material sense than in (country omitted).
Mr H spends regular periods in (country omitted), where he apparently has business interests. He also owns property in Adelaide and is involved with a building business in the state of South Australia. I appreciate that (country omitted) is not a signatory to the Hague Convention, whilst (country omitted) is. Accordingly, if Ms Travis elects to remain in (country omitted), with X, it is likely to be very difficult to secure the return of the child to Australia.
Ms Travis has spent the larger proportion of her life living in (country omitted). As a result, she is a native (country omitted) speaker. She also has significant familial connections in (country omitted), where her mother and brother live. In a practical sense, she could function in (country omitted) as she is familiar with the country, its language and traditions and she would have some where to live and some sources of support, both emotional and financial.
However, in my assessment, it is extremely unlikely that Ms Travis would abscond with X to (country omitted) or some other country, in the event the court authorises the travel in question. I accept her evidence that she sees her life in Australia and that she has significant ties, both emotional and financial, in this country.
To his credit, Mr Weaver does not approach the case on the basis that there is a risk of Ms Travis and X absconding from Australia for (country omitted). He sees the case more in terms of educational detriment for X; as an upset to his routine; opening the potential for him to come to harm in (country omitted); and no real intellectual or cultural benefit for him, given his comparatively tender years.
In these circumstances, I do not propose to fix any surety to secure Ms Travis’ return with X to Australia. In any event, Mr Weaver has not sought any such surety. It is also highly relevant that, as recently as July 2012, the mother, X and Mr H travelled to (country omitted) and (country omitted), with Mr Weaver’s apparent acquiescence and returned uneventfully, although the father asserts that the mother breached salient conditions of the agreement reached in respect of that trip. I will return to this matter in due course.
Accordingly, I propose to approach the case from the perspective of the primary consideration relating to protective issues for children and other additional considerations relating to relationship; educational issues; cultural perspective; and parental insight. Although X is not yet eight years of age and his views have not been formally canvassed in these proceedings, his wishes about the proposed trip are also likely to be germane.
All assessments of risk require a degree of prognostication about the future, which of course can never be known in advance. As Cronin J said in Gin & Hang:[15]
“Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.”
[15] Gin & Hang [2010] FamCA 617
Mr Weaver has been to (country omitted) in the past. Indeed he and the mother lived together in the city both before and after X’s birth. In addition, Mr Weaver is familiar with the suburb, apparently on the outskirts of (country omitted), where Ms Travis’ mother lives. He characterises it an unsavoury neighbourhood, of project housing, where the communist regime deposited antisocial groups. As a consequence, it his position that crime is rife in the area.
In addition, he would characterise Mr H as a naïve person, who is ill-equipped to travel to such a locale. He fears that Mr H’s physical appearance and obviously western style of clothing will attract the attention of criminal elements and this will be risky for X. Needless to say, the mother refutes these assertions and takes considerable umbrage at how the place, where she grew up and her mother continues to live, has been described.
I have never been to (country omitted). The only evidence available to me about the location and indeed about (country omitted) more generally comes from the parties themselves, neither of whom is likely to be completely objective about the issue.[16] I must be careful not to adopt stereotypical attitudes in respect of (country omitted).
[16] During the course of the proceedings, I disclosed to the parties that I have visited the (country omitted), as a tourist, in 1990.
In these circumstances, the responsibility of the court is to attempt to quantify the degree of risk arising for X from travelling, in the company of his mother, to a place such as (country omitted) and (country omitted) generally, in an objective and rationale manner and determine whether any risk entailed is one which it is not reasonable for the court to accept in all the circumstances prevailing, whilst balancing that risk against any benefits which may arise for X from such travel.
There may be “a” risk or “some” risk of X coming to harm as a result of some criminal act or accident befalling him, either in (country omitted) or (country omitted), because such an eventuality can never be definitively ruled out. The question in cases of this nature is the degree or quantification of the risk concerned.
Accidents and crimes do befall Australians travelling overseas, be they travelling to Switzerland or Syria. However, necessarily some countries and some portions of those countries are riskier than others. It is inappropriate for the court to prevent travel because of some remote possibility that a child will come to harm. For obvious reasons, a child is likely to be comparatively safe in down town Zurich, but unacceptably at risk in central Aleppo.
The court must assess the degree of risk and put in place any necessary measures proportionate to the degree of risk, as so assessed. If the risk is unacceptable to such a degree, in objective terms, that the court cannot countenance it, it is the court’s responsibility to refuse the travel sought.
At the same time, as it conducts its assessment of these risks, the court must also assess any potential benefits, arising for X, from the proposed travel, according to any applicable criteria arising under section 60CC.
In a case involving an application for overseas travel, the following considerations are likely to be germane:
·the nature of the relationships the child has with each parent and any other person (including a grandparent or other relative) [section 60CC(3)(b)];
·the willingness of Ms Travis to foster the child’s relationship with his father, whilst the child is overseas. In this context the length of the proposed trip is likely to be relevant [section 60CC (3)(c)];
·the capacity of each parent and any other person, including a grandparent, to provide for the child’s needs, including his emotional and intellectual needs [section 60CC(3)(f)];
·the particular background of any child concerned, which is taken to include the lifestyle, culture and traditions and any other relevant characteristic of both the child and his parents [section 60CC (3) (g)].
It is a strong theme of the mother’s case that it will be beneficial for X to have the opportunity to interact with members of his maternal family, particularly his grandmother and uncle, in the cultural milieu applicable to them and from which the child himself in part derives, namely (country omitted).
In addition, it is implicit in her case that X will benefit from the experience of overseas travel itself. These benefits will be educational in character and can be summed up by the aphorism “travel broadens the mind”.
If the trip proceeds, X will be exposed to different languages, cuisine and culture in both (country omitted) and (country omitted). The historical context implicit in such things is necessarily very different to the social setting in which he normally lives in South Australia. From the father’s perspective, the child is too young to derive any significant benefits from these experiences.
The guiding hand of the legislature can be seen in section 60B, where the objects and principles of Part VII are set out. These principles (set out in full above) emphasise the entitlement of children to spend time with their relatives, particularly grandparents and speak of their right to enjoy their cultural background with other relatives who share that culture with them.
Cultural background is important to children. It provides them with a sense of identity. Identity very often comes from a child knowing relatives, on both the paternal and maternal aspects of his or her family and placing those relatives within a cultural context. In addition, overseas travel, particularly to meet family, can be a rich experience for children, the memory of which can last a life time.
With these principles in mind, I turn to consider the evidence of each of the parties in more detail.
The Evidence
I did not think it appropriate that the issue of overseas travel for X be determined on the papers, as some time happens in cases where the issues concerned falls within a small compass. Rather, given the moment of the issue for the parties, particularly Mr Weaver, I determined that there should be a complete, if short hearing, in respect of the issue, which would encompass the taking of oral evidence and the opportunity for cross-examination.
Up until a late stage, I envisaged that both parties would be self-represented at this hearing. However, the mother elected to instruct a solicitor, who retained counsel, Mr Heinrich for the hearing. Mr Weaver, as has been his preference for most of the proceedings beforehand, elected to represent himself.
As a consequence, I was able to observe each of the parties at close quarters and make some further assessment of their credibility and motivations in these proceedings. I should also point out that I have been managing the litigation between the parties, regarding X, for a period approaching three years.
Mr Weaver presents as an ostensibly reasonable and worldly person, who was concerned only about what was best for X. He presented as highly knowledgeable about contemporary (country omitted) society and the dangers existing there. He continues to have a certain level of distain for Mr H, whom he regards as somewhat ineffectual.
I accept that Mr Weaver does love X and does want the best for him. However, I am concerned that much of his stance in these proceedings is directed to securing the upper hand over Ms Travis, whom he continues to resent for having the temerity to apply to the court to bring the earlier shared care regime to an end. In this context, I am concerned that the major motivation, for his objection to the travel, is for the sake of being difficult.
In this context, it was hard to pin down what was the actual ground for his objection to the travel, given that in past proceedings he had conceded that X was a child of part (country omitted) extraction; had a significant level of relationship with his (country omitted) grandmother; that X’s mother was street smart in respect of (country omitted) society and would not willingly or negligently expose to X to harm; and he indeed had agreed to the child travelling to (country omitted) in the past, albeit subject to conditions and he had been returned uneventfully.
I found Mr Weaver to be somewhat evasive about the grounds for his objection to the travel, which shifted during the course of the proceedings. At some stages, it was the dangers implicit in (country omitted); at others it was the inadequacy of the insurance for the family; at the end the major issue appeared to be the disruption to school. The underpinning of all of these objections was his desire to disparage the mother and her background.
Ms Travis presented as a stressed and overwrought person, who was exhausted from being, as she perceived it, constantly bullied by her former husband, with whom she found it impossible to compromise or placate. Mr Weaver will assert that this affect was feigned and he is the person who is the victim of the mother’s caprice and dishonesty rather than vice versa. I did not find it so. I find the mother to be the more credible person, whose overall bona fides for the travel in question are less open to challenge.
In April of 2012, during the course of the early trial proceedings, Mr Weaver consented to X travelling to (country omitted) and (country omitted) with his mother and Mr H. The trip in question was for a period of three weeks in June/July of that year and was to be subject to the following conditions:
·X and the father were to skype once a week;
·The mother was to arrange for travel insurance from a reputable internationally recognised company such as Zurich to provide a policy which covers emergency exit from any location to an English speaking country;
·On arrival in (country omitted) Mr Travis discards western clothing and wears only locally available clothing;
·The mother’s brother shall stay with the family during the holiday period.
The father asserted that the mother had not complied strictly with these conditions, particularly in respect of insurance. The mother’s evidence was that she had done the best she could, but what was required by the father was ever shifting. In this context, she had brought with her to court to insurance policies. She said she would take out whatever policy the father nominated to her, at her expense.
Ultimately, the father indicated that an Allianz policy with evacuation cover was acceptable to him. In terms of the requirement for Mr H to discard his normal apparel in (country omitted), Mr Weaver indicated that he had sought the condition only out of concern for Mr H. From the mother’s perspective the condition was unnecessary because people in (country omitted) wore similar clothing to those in the West.
This difference in evidence led to cross-examination about whether levi jeans manufactured in (country omitted) looked different to those manufactured for sale in Australia. This was but one example which led me to view Mr Weaver as being somewhat pedantic and querulous about the issue of overseas travel for X.
This year the mid-year school holiday in South Australia will commence from after school on Friday 4 July and conclude on Sunday 20 July. Ms Travis seeks to be able to travel overseas between 12 July (a Saturday) and 9 August (again a Saturday). If the trip is approved X will miss three weeks of school.
The mother’s evidence is that X’s teacher is not concerned about the extent of this period, as she believes he will benefit in other ways from the travel proposed. In addition, she will be able to provide X with some work to do, whilst he is away, which he can attend to via computer. Ms Travis has deposed that she will be travelling with a laptop and will ensure that X does his work.
In my assessment the trip is not of an excessive length, when X’s age is considered. In my view, the trip is not likely to jeopardise unduly X’s educational progress, particularly if he attends to the homework set for him. In addition, I accept that there are likely to be some educational benefits for him arising from the travel.
I appreciate that he is of tender years and, as such, is unlikely to have any great interest in monuments, museums and archaeological sites in both (country omitted) and (country omitted). However, it will do him no harm to be exposed to such things. In addition, just the experience of such things as travelling through different countries; eating different foods; and hearing different languages spoken; is likely to broaden his mind.
The mother’s evidence is that she speaks to X in (country omitted) at home from time to time. In addition, X is able to converse with his maternal grandmother, to some extent, in (country omitted). If X is able to consolidate his (country omitted) language skills it is likely to be highly beneficial to him.
In addition, X is a child with a strong (country omitted) background. He himself was born in that country. The opportunity to travel to (country omitted), with his mother, is likely to enhance his sense of cultural identity. Even if does not, it will emphasise to him the benefits of growing up in this country.
I accept that X has a strong relationship with his maternal grandmother. Ms Travis indicated that he spoke to her weekly by telephone. He will have some memories of interacting with her face to face from his last trip to (country omitted) and (country omitted) in 2012.
As I have indicated, the Family Law Act emphasises the centrality of grandparents to children as they grow and develop. Grandparents are sources of love for children and are repositories of information about the background and family of any child concerned. Grandparents are important for children. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both sides, uncles, aunts, cousins and the like.[17]
[17] See Bright v Bright (1995) FLC 92-570 at 81,658
X understands that there is the possibility of him going on holiday to (country omitted) and (country omitted), as he done in the past. He is excited at the prospect. To paraphrase his mother: “if he knew he was going, he would pack his suitcase tonight”. This rings true to me. X’s likely and understandable preference is to go on holiday. He is likely to be disappointed if the holiday is cancelled.
The (country omitted) component of the proposed trip is approximately nine days, most of which will be spent in (country omitted). It is proposed that the family will travel by car from (country omitted) to (country omitted). In addition to her apartment in (country omitted), the maternal grandmother has a (omitted) in the countryside, where she grows vegetables.
The Australian Government advises its citizens travelling to (country omitted) to exercise a high degree of caution in the country because of potential terrorist activity and the level of crime. The Australian Government advises against travel to the (omitted) region because of civil unrest there.[18] Mr Weaver indicated his belief that there are many individuals from (country omitted) living in (country omitted) and this is likely to heighten the level of risk.
[18] See Smartraveller.gov.au
I accept that the World is a dangerous place and no part of it is immune from the threat of terrorist attack. There have been serious terrorist attacks in New York, London, Madrid and Bombay in recent years, just to name a few international cities regularly frequented by tourists from this country and elsewhere. There have also been a number of such attacks in (country omitted), including in (omitted). Some of these attacks have been attributed to (omitted) terrorists.
I cannot guarantee that (country omitted) is completely safe in this regard – no one can. Similarly, I accept that any visitor to (country omitted), particularly one who is blasé about his or her personal security, is at risk of criminal activity. I am not in a position to determine definitively whether (country omitted) is more dangerous in this regard than other cities in (country omitted). Mr Weaver would say it is; Ms Travis would say otherwise.
What I do know is that the mother is a native (country omitted) speaker, who grew up in (country omitted). Obviously she knows the locale very well. She is also no fool or innocent abroad. She is not likely to be looking for trouble and has, in my assessment, some capacity to recognise potentially dangerous situations and avoid them. I do not think she would consider going to (country omitted), if she thought it would put X in harm’s way.
X is now part of a blended family, which has a significant (country omitted) flavour to it. His half sibling, Y has a father who strongly identifies as being (country omitted). His step brother and sister also share this characteristic. For this reason, the (country omitted) component of the trip is important for both the mother and Mr H.
It is envisaged that part of the (country omitted) leg will be spent at the beach. Members of the mother’s family from (country omitted) will join her there. It is envisaged that X’s brother Y will be baptised, in (country omitted), in the presence of (country omitted) and (country omitted) members of his family. As is well known, (country omitted) and (country omitted) share a long religious tradition.
The beach aspect of the holiday is likely to be appealing to a child of X’s age. More importantly, the baptism of Y is a family event of central importance to him. For all I know, memories of the event will last a lifetime for him. It is likely to be memorialised in photographs, which he will access in future. It is likely to be beneficial for X if the event takes place as planned and he attends it in (country omitted).
Bearing all these considerations in mind, I have come to the conclusion that the benefits of the proposed trip for X outweigh the potential risks and dangers. I do not propose to shorten the trip envisaged to reduce the number of school days which will be lost to X. In this regard, I have considered the cost of the trip and logistical issues arising. The trip must be of sufficient duration to make it worth going in the first place.
For all these reasons, I propose to make the orders which the mother’s seeks. She will be permitted to leave the Commonwealth of Australia, with X, between 12 July and 9 August 2014. Any order placing the child’s name on the Airport Watch list is discharged.
The mother will be required to take out the travel insurance approved by the father, which is to include emergency evacuation cover. The mother is also to ensure that X is able to skype his father twice weekly, whilst he is away. She is to provide him with a full itinerary of the travel, including addresses where X will be staying.
The current applicable orders (orders 8 9 & 15 of the orders of 30 August 2012) will be suspended from the end of term 2 until 11 August and in lieu thereof X will spend from after school on Friday 4 July until midday on Friday 11 July with his father. This will include the child’s eighth birthday. In the circumstances, it is appropriate that the normal birthday regime be suspended, so that X spend the entirety of his birthday with his father.
Order 18 of the orders of 30 August 2012 will be amended to read that the child is to be exchanged between the parties wherever possible at his school but when school is not available within the foyer of the main Adelaide police station.
Ms Travis has indicated that she is open to the court making an order for make-up time for Mr Weaver. He is concerned that this will add rather than reduce the disruption for X. In this context, I suggested that perhaps the end of year school holiday could be arranged so that he had four weeks of it and the mother two and that, if he wished, he could take X to (country omitted) for a holiday.
The mother has no objection to X spending time in (country omitted). The father, at this stage, is unsure whether he will be able to arrange such a trip. In the past, he has accused the mother of sabotaging his holiday plans.
In all these circumstances, I propose to amend order 9 of the orders of 30 August 2014 so that for the end of year holiday period commencing in 2014 only, the father is to have the first four weeks of such holiday. I do not propose to discharge the existing arrangements so far as the actual festive days of Christmas are concerned, as I am satisfied there will be sufficient time for the father to organise an appropriate holiday for himself and X.
Otherwise all existing applications will be dismissed. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 18 June 2014
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